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Sopo v. United States AG,  2016 U.S. App. LEXIS 10789  decided on June 15, 2016

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Case Summary: In Sopo, the Eleventh Circuit vacated a district court decision denying a petition for writ of habeas corpus  (§ 2241 petition) and instead remanded the case for entry of judgment in alien’s (appellant’s) favor.

In May 2003, Sopo fled his home country of Cameroon to the United States and applied for asylum based on his political affiliations. On August 23, 2004, USCIS granted Sopo’s asylum application In August 2010 however, the U.S. district court convicted Sopo of bank fraud. Then, on January 17, 2012, ICE served Sopo with a notice to appear (“NTA”), alleging that his bank-fraud convictions were aggravated felonies that made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Since February 2, 2012 Sopo has been in ICE detention, without access to a bond hearing, pursuant to 8 U.S.C. § 1226(c), which mandates civil detention for certain criminal aliens during their removal proceedings. Sopo’s removal proceedings are still in process before the Board of Immigration Appeals (“BIA”) today.

The district court, in making its initial decision, determined that because Sopo qualified under 8 U.S.C. § 1226(c) which mandates civil detention for certain criminal aliens during their removal proceedings, that his petition for writ of habeas corpus be denied.  Sopo appealed this decision to the Eleventh Circuit.

In contrast, the Eleventh Circuit reasoned that 8 U.S.C. § 1226(c) contained an implicit limitation against unreasonably prolonged detention times of criminal aliens without an individualized bond hearing. Sopo had been in detention for four years without an individualized bond hearing and at least three-and-a-half years of that time had been under § 1226(c). There was therefore no question that Sopo’s detention, without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable and, therefore, a violation of the Due Process Clause.

Support for this decision: Other circuits have also concluded that this interpretation is reasonable because Congress has not clearly demonstrated intent to empower the Attorney General to detain criminal aliens indefinitely.

Implications:

  1. The principal of constitutional avoidance in judicial decision making is at the core of this decision and often takes precedence. As a matter of constitutional avoidance, at some point such detained aliens become entitled to an individualized bond hearing. The circuits are split, however, as to when the individualized bond hearing should occur.
  2. Given the recent surge in mandatory detention, future courts in the Fourth Circuit may conduct a more thorough review when determining whether mandatory detention is a violation of the Due Process clause if it is unreasonably prolonged.
  3. Mandatory detention is only a general rule that needs to be applied to the specific circumstances of a case. Authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.
  4. Congress made clear its intent to ensure that S.C. § 1226 did not violate the Due Process clause of the Constitution. Under 8 U.S.C. § 1226(a) the Attorney General has the discretion to release aliens in removal proceedings on either bond or conditional parole. Once the government can no longer constitutionally detain a criminal alien under§ 1226(c) without a bond hearing, the criminal alien’s detention defaults to § 1226(a) that governs the detention of non-criminal aliens.

 

 

 

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